Los Angeles Police Detective and gang expert Frank Flores has been tossed on the griddle in the ongoing MS-13 racketeering (RICO) prosecution in Los Angeles.

But first, a big shout-out to Celeste Fremon and her WitnessLA blog, which was named “LA’s Best Police Blog” by LA Weekly. Although Fairly Civil and WitnessLA have different perspectives, Fremon and WitnessLA have done a great job of filling a vast vacuum — journalistic dark hole — left by the indifferent Los Angeles Times on this and other pivotal gang cases and programs.

Back to the subject at hand, the famous (or infamous) Alex Sanchez case.

According to the federal district court’s official minutes of a January 13, 2010 hearing – not (yet) sealed – Det. Flores will be grilled at a so-called “Daubert Hearing” in March:

The Court sets a Daubert Hearing on Detective Frank Flores’s expertise to testify for the government at trial as an expert witness on March 8, 2010 at 1:30 p.m., to be held in Courtroom 890 of the Roybal Courthouse.

“Criminal Minutes – General,” United States v. Jose Alfaro, United States District Court for the Central District of California, CR-09-466-R, filed January 13, 2010.

This could be huge, folks.

Just the Expert Facts, Please

Det. Flores has been in the defense lawyers’ sights from the beginning because it is his expertise that “connects the dots” among much of the cryptic gang talk on key wiretap tapes. He also can provide the “big picture” and overall perspective on MS-13 as a criminal enterprise – the core of a RICO conspiracy case.

Big gorilla of a question: Can the federal prosecution team keep Flores out from under the bus?

One may assume that the prosecution has other experts on its bench, but if Flores gets tossed, the defense will win a huge “moral” victory.

One may be assured, therefore, that this will be as rough and tumble a legal gang bang as Judge Manuel L. Real will tolerate in his courtroom. Let’s hope Judge Real keeps this one open to the public.

What the Heck is a “Daubert Hearing” and Why Care?

Fairly Civil is no expert on Daubert Hearings, but pulled together the following notes from a few websites devoted to the subject. (Links to sites are in the titles.)

What is a Daubert hearing? It is, in effect, a mini-trial within a trial, conducted before the judge only, not the jury, over the validity and admissibility of expert opinion testimony.

…

Actually, of the trilogy of cases, Daubert, Joiner, and Kumho Tire, discussed at this symposium, Kumho Tire is perhaps even more important than Daubert because of two central points in that decision.

– It clearly states that a Daubert determination of reliability must be made in all cases where expert evidence is offered, whether we call it scientific evidence or technical knowledge or skilled profession.

– The Daubert inquiry is to be a flexible one. All of the factors identified in Daubert that guarantee the kind of reliability the Supreme Court said was needed for admissibility of opinions based upon scientific knowledge, such as replicability, established error rates, peer review, and so on, do not necessarily apply to all forms of expert testimony with the same rigor. They apply with full force only to those disciplines to which such factors can be applied. Conventional wisdom holds that these factors cannot be applied, in the manner spelled out in Daubert, to handwriting identification or to many other forensic sciences where cases deal with problems that are unique and where the accuracy of a specific finding cannot be stated with a measurable statistical degree of confidence.

Prior to the adoption of the Federal Rules of Evidence, all federal and most state courts followed the “Frye” test to determine the admissibility of scientific evidence. In Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court held that the Federal Rules of Evidence, and in particular Fed. R. Evid. 702, superseded Frye’s “general acceptance” test.

Fed. R. Evid. 702 contains two requirements. First, the evidence must be reliable, or in other words, trustworthy. Trustworthiness guarantees that the information is supported by scientific methods and procedures. Second, the evidence must be relevant. The criterion of relevance has been appropriately described as one of “fit.” To satisfy this requirement, the proffered testimony or evidence must be sufficiently tied to the facts of the case that it will help the jury in resolving a factual dispute. “Rule 702’s ‘helpfulness’ standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility.”

Faced with a proffer of expert scientific evidence, the trial court is charged with the role of “gatekeeper” and must initially determine, pursuant to Fed. R. Evid. 104(a), whether the expert is proposing to testify to scientific knowledge that will assist the trier of fact to understand or determine a fact in issue. This decision demands an evaluation of whether the reasoning or methodology underlying the testimony is scientifically valid and can be applied to the facts at issue.

In Daubert the Supreme Court provided four nondefinitive factors that trial courts should consider in making this determination. First, the court should evaluate whether the theory or technique can be and has been tested. Second, the court must determine whether the theory or technique has been subjected to peer review and publication. Third, the court should consider the known or potential rate of error. Finally, the court should evaluate the general acceptance of the theory in the scientific community. The Seventh Circuit has added an additional consideration: whether the proffered testimony is based upon the expert’s special skills.

In addition to these four Daubert factors, other safeguards exist to protect against the admission of unreliable or irrelevant scientific evidence. Federal Rules of Evidence 703, 706 and 403 each provide an independent check. Procedures familiar to every trial attorney, such as vigorous cross examination, the presentation of contrary evidence, and careful instruction of the jury on the burden of proof, also help guard against the acceptance of suspect scientific evidence. Finally, the Federal Rules of Civil Procedure prevent cases from going to trial where the evidence is unreliable.

In the following discussion one caveat is called for: We do not suggest that hearings on reliability and relevance are inherently inappropriate. Daubert challenges may, in fact, reflect attorneys’ confidence in their own experts’ views and justified suspicion of the experts’ opinions on the other side. Thus, in a best-case scenario, the challenge leads to achievement of a just and favorable outcome, obviating the expense and uncertainty inherent in a trial. Moreover, when an opposing expert is proffering innovative testimony, the ethics of practice, concerns about legal malpractice, and concerns about claims of ineffective assistance of counsel may require such a challenge.

In contrast to these valid concerns, when the attorney feels that a case is weak or that the client is unattractive to potential jurors, the attorney may want to see if the opposing expert can be “knocked out of the box” from the start by a Daubert challenge. While this ploy poses uncertainties of its own, the effort may be economically justifiable to the retaining attorney.

Delay

The Daubert hearing is not unique in being subject to abuse. Many other valuable safeguards of the fundamental fairness of the legal system exist, such as insuring that a defendant is competent to stand trial before facing the rigors of the adversary system. Yet, in our experience in Massachusetts courts, a motion to invoke this useful safeguard can be and has been used as a delaying tactic to permit the attorneys to prepare the case more thoroughly, to set the stage for a later insanity plea, or even to foster the hope that witnesses will become less sure about recalled testimony.

Similarly, a Daubert hearing may be requested by one side or the other—even when the relevant science is basic, established, and non-controversial—as a comparable delaying tactic designed to secure some advantage by the delay, although, as the law evolves, such challenges to established science may become less common. In our experience, challenging the use of even absolutely standard psychological testing is a common ploy in this category.

The Dry Run

By providing a picture of the expert in action under cross-examination, expert depositions commonly serve as “dry runs” for trial preparation. However, Daubert hearings have the advantage of providing a second opportunity to probe the expert, as well as to obtain an otherwise unavailable assessment of the trial judge’s attitudes toward the case. In those jurisdictions where depositions do not occur or are not allowed in civil or criminal cases, thus depriving attorneys of the opportunity to perform a dry run of the cross-examination of the opposing expert, a Daubert hearing may serve the purpose of obtaining an equally valuable advance look at the opposing experts’ opinions, bases, methodology, and courtroom demeanor. The resultant data can be put to very good use by the attorney in case preparation, mastery of the relevant literature, and the like.

Impeachment: Laying a Foundation

Just as moving for an unnecessary examination for competence to stand trial may aid the attorney in laying a foundation (if only in the public’s mind) for a later insanity plea, moving for an unnecessary Daubert hearing may lay the foundation for later efforts to impeach the expert’s reasoning on scientific grounds. Even if the expert’s opinion is ultimately not excluded, the knowledge gained in the process (the dry run suggested in the prior section) may be helpful to the attorney in designing more effective cross-examination for trial.

Rattling the Expert

The motion for a Daubert hearing may constitute no more than an attempt at simple harassment of the experts, designed to shake their confidence in their own testimony by a threshold challenge to their approach, methodology, reasoning, and professional acceptance of the experts’ theory of the case.

Fatigue Factors

In a related manner, a mid-testimony hearing may be attempted on a specious issue, to overextend the expert’s time on the witness stand, perhaps interrupting the flow of case-related testimony that the jury hears. This approach may generate sufficient distraction and breach of concentration in the jury to obscure the gist and impact of the expert’s testimony.

Economic War

Because a Daubert hearing involves costs for the time and participation of the parties and assistants (e.g., stenographers), the hearing may be requested by a large, rich firm, to drive up the costs for an opposing small, poor firm and thus to discourage or render more difficult the latter’s participation in the suit.

Similarly, because of cost restrictions from the client or insurers, a law firm unable or unwilling to hire its own reputable expert may be forced to put its efforts into attempting to disqualify the other side’s expert through Daubert challenges. Theoretically, such an approach may also serve to create a record designed to refute a later claim for legal malpractice in this situation. An attorney’s specious introduction of standards for reliability and relevance (that no expert could meet) in this setting may also constitute an attempt to excuse his or her failure to retain an appropriate expert.

Shooting the Messenger

A highly unusual twist in the Daubert question has occurred with one of us (H.B.) when an attorney hired several experts, but one of them did not present a favorable opinion after review. The attorney presented that expert’s opinion to the other side in a distorted way that invited a Daubert challenge, which was feebly and ineffectively resisted by that attorney. The attorney then used the successful challenge to rationalize not paying the expert for work already done, based on the alleged failure of the opinion to meet the standard.

Tom Diaz is a lawyer, author, journalist, and an accomplished public speaker. Diaz was formerly Democratic Counsel to the Subcommittee on Crime and Criminal Justice of the Judiciary Committee of the U.S. House of Representatives. He worked for then-Rep. Charles E. Schumer. His principal brief covered issues related to terrorism ... Continue reading →